Citation Nr: 9909327
Decision Date: 04/02/99 Archive Date: 04/16/99
DOCKET NO. 97-17 O65A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for a right shoulder
condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Todd R. Vollmers, Associate Counsel
INTRODUCTION
The veteran had active service from April 1953 to May 1955,
and November 1957 to November 1961.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Boston, Massachusetts,
in February 1997 that denied the claimed benefits.
FINDINGS OF FACT
1. The claim for service connection for a right shoulder
condition is not accompanied by any medical evidence to
support the claim.
2. The claim for service connection is not plausible.
CONCLUSION OF LAW
The claim for service connection for a right shoulder
condition is not well grounded. 38 U.S.C.A. § 5107 (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran's service medical records are negative for any
diagnoses of right shoulder problems. The veteran's June
1953 induction examination did not note any shoulder
problems. The veteran's May 1955 separation examination
found his upper extremities, including shoulder, to be
normal. An October 1957 enlistment examination found the
veteran's upper extremities, including shoulder, to be
normal. One notation concerning the veteran's shoulder
states that in August 1961, he was treated for pain "on L
[left] side chest U.L.Q. [upper left quadrant] radiating into
shoulder." The impression given was of pleurisy. The
veteran's separation examination in October 1961 found his
upper extremities, including shoulder, to be normal.
Private medical records show that in July 1995 the veteran
was treated for right shoulder pain. The veteran's condition
was described as including limited range of motion, with the
pain starting at the top of the shoulder and radiating down
into the lateral upper arm. The impression given was of
bursitis. Examination showed "no obvious fracture or
dislocation," and the examiner saw "no obvious bursal
calcification to suggest calcific bursitis." The examiner
also stated that there was "a well defined calcific density
noted adjacent to corocoid process [sic] may very well be
representing vascular calcification."
Other private medical records show that the veteran was
treated for right shoulder discomfort in June 1996. Plain
radiographs of the shoulder demonstrated "a rather prominent
Type II acromial process with some spurring off the tip of
the anterior acromion. There [wa]s some degenerative change
at the AC [acromioclavicular] joint. A bit of sclerotic
change at the greater tuberosity." The impression given was
of "chronic impingement syndrome, right shoulder, with a
mild secondary capsulitis."
An undated letter from a friend who played baseball with the
veteran from March through August 1954 states that he does
"remember [the veteran] having a sore arm." Another
letter, dated June 24, 1996, states that this person played
baseball with the veteran while in the military in 1954, and
that he remembers the veteran "constantly complaining about
a sore shoulder when he [the veteran] pitched." The letter
also states that the veteran eventually had to give up
pitching because of the pain in his shoulder.
A letter dated July 1996 states that the veteran was going to
physical therapy three times a week for a month under
doctor's orders. The letter did not specify whether the
physical therapy included the veteran's right shoulder.
The veteran also submitted a newspaper clipping about his
playing baseball while with the U.S. Army in Germany.
Pictures of the veteran playing baseball with the two friends
who attested to his right shoulder problems were also
submitted by the veteran.
Analysis
Service connection connotes many factors, but basically means
that the facts, as shown by the evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with military service or, if pre-existing
such service, was aggravated therein. 38 U.S.C.A. §§ 1110,
1131. This determination requires a finding of a current
disability that is related to an injury or disease incurred
during service. Watson v. Brown, 4 Vet. App. 309, 314
(1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
A person submitting a claim for VA benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107(a); see also Carbino v. Gober, 10 Vet. App.
507 (1997). A well grounded claim is a "plausible claim,
one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of § [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). The United
States Court of Appeals for Veterans Claims (Court) has held
that a claim must be accompanied by supportive evidence and
that such evidence "must justify a belief by a fair and
impartial individual that the claim is plausible." Tirpak
v. Derwinski, 2 Vet. App. 609, 610 (1992). In order for a
claim to be well grounded, there generally must be (1) a
medical diagnosis of a current disability; (2) medical, or in
some circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between an in-service injury or disease and the
current disability (including through presumptions that
certain diseases manifesting themselves within certain
prescribed periods of time are related to service). Epps v.
Brown, 9 Vet. App. 341, 343-44 (1996), aff'd sub nom. Epps v.
Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown,
7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table).
The quality and quantity of the evidence required to meet the
veteran's burden will depend upon the issue presented by the
claim. Where the issue is factual in nature, competent lay
testimony, even if only consisting of the veteran's
testimony, may constitute sufficient evidence to establish a
claim as well grounded. However, where the issue involves
medical causation or a medical diagnosis, it requires
competent medical evidence establishing the claim as
plausible or possible. Evidentiary assertions by the
appellant must be accepted as true for purposes of
determining whether a claim is well grounded, except where
the evidentiary assertion is inherently incredible. King v.
Brown, 5 Vet. App. 19 (1993). Nevertheless, a claimant does
not meet his burden by merely presenting lay testimony,
including his own, since lay persons are not competent to
offer medical opinions. Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992). Lay assertions of medical causation or
diagnosis cannot constitute evidence to render a claim well
grounded under § 5107(a); if no cognizable evidence is
submitted to support a claim, the claim cannot be well
grounded. Tirpak v. Derwinski, 2 Vet. App. at 610-11 (1992).
The veteran has submitted evidence of diagnoses concerning
his right shoulder. Medical records from July 1995 cite an
impression of bursitis in the right shoulder, and June 1996
medical records list an impression of chronic impingement
syndrome with mild secondary capsulitis.
The veteran states that he incurred his right shoulder
condition while playing baseball during his first period of
active duty. While service records don't make
reference to a right shoulder injury, the veteran has
submitted statements from two friends who played baseball
with him while in service, and remember his right shoulder
complaints. These lay statements are evidence that the
veteran complained of shoulder problems while in service, but
the question to be resolved is whether the veteran's current
right shoulder disability is related to the problems
experienced in service.
In this regard, the veteran has not submitted any medical
evidence to connect the current diagnoses of right shoulder
problems with an injury or disease that occurred during his
military service. Although the veteran's statements and
testimony as to factual matters must generally be accepted as
true for determining whether his claim is well-grounded, his
opinion that right shoulder complaints from his time in
service are related to current shoulder problems is entitled
to no probative weight because, as a layperson, he is not
competent to offer such an opinion. Espiritu. Medical
evidence regarding medical diagnosis and etiology is
required. Examinations of the veteran's right shoulder noted
his report of injuring his right shoulder playing baseball.
However, evidence which is simply information recorded by a
medical examiner and without any additional medical comment
by the examiner, is not competent medical evidence. See
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); LeShore v.
Brown, 8 Vet. App. 406 (1995). In this case, there is no
medical evidence showing that any current problems with his
right shoulder were caused by an injury or disease incurred
while he was in service.
Therefore, the criteria for establishing a well grounded
claim under Caluza v. Brown are not met, since the veteran
has not provided any medical evidence showing a nexus between
a right shoulder condition and an in-service injury or
disease. Lacking such evidence, the veteran's claim is not
plausible and so must be denied as not well grounded.
ORDER
In the absence of a well-grounded claim, service connection
for a right shoulder condition is denied.
C.W. Symanski
Member, Board of Veterans' Appeals
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